Bangalore District Court
Pratap S.Shetty vs Sri.Ramachandra on 29 November, 2022
1
C.C.No. 6872/2019
KABC030209322019
Presented on : 21-03-2019
Registered on : 21-03-2019
Decided on : 29-11-2022
Duration : 3 years, 8 months, 8 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 29 th day of November 2022.
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.6872/2019
Complainant : Pratap S.Shetty,
S/o. Sheenappa Shetty,
Aged about 38 years,
R/at No.16/2,
P. Kalinga Rao Road,
Subbaiah Circle,
Bangalore -560 027.
(By Sri.T.Mohandas Shetty.,
Adv,)
V/s
Accused : Sri.Ramachandra,
S/o.Vittal Acharya,
R.at No.6, Ground Floor,
4th Main Road,
Bhairaveshwara Nagara,
Nagarabhavi Main Road,
2
C.C.No. 6872/2019
Mudalapalya,
Bangalore 560072.
Also Residing at:
Vaddarse,
Vaddarse Village And Post
Kundapura Taluk,
Udupi District. 576225.
(By Sri. Charamagol Law
Chambers.,Adv.,)
Case instituted : 2.2.2019
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 29-11-2022
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The accused has approached the complainant in the last week of March 2017 for hand loan of Rs.4 lakhs for improvement of business and for family benefits. The complainant has paid a loan of Rs.4 lakhs to the 3 C.C.No. 6872/2019 accused on 05.04.2017. The accused has executed an On Demand Promissory Note and consideration receipt on 05.04.2017 for Rs.4 lakhs agreeing to repay the loan with interest @ 15% p.a within 19.12.2019.
3. It is further averred in the complaint that the accused has issued a cheque bearing No.858177 dated 19.12.2018 for Rs.1 lakh drawn on Saibarakatte Branch, in favour of the complainant towards interest for loan amount. The accused has agreed to return the principal amount on or before 19.12.2018 by way of cash. The complainant has presented the the cheque for encashment before Vijaya Bank, Gandhi Bazar Branch, bangalore on 19.12.2018, but the said cheque was came to be dishonoured for want of sufficent funds in the account of the accused vide bank endorsement dt:
19.12.2018 and it was intimated to the complainant on 20.12.2018. The complainant got issued a legal notice dated 21.12.2018 calling upon the accused to pay the cheque amount of Rs.1 lakh within 15 days from the date of receipt of notice. The notice was served on the accused on 22.12.2018. The accused has sent an untenable reply and failed to pay the cheque amount and committed an offence punishable U/s.138 of N.I.Act. Hence, this complaint.4
C.C.No. 6872/2019
4. After presentation of complaint, it was ordered to be registered as PCR No.1873/2019 vide order dated 11.2.2019. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.11.
5. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and having satisfied with the complaint averments, sworn statement of complainant and the documents at Ex.P.1 to P.11 has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered as CC.No.6872/2019 and process was ordered to be issued agianst the accused vide order dated 20.3.2019.
6. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.1000/- vide Q.No.18968/19 dt:28.1.2020. The copies of all the prosecution papers were supplied to the accused.
7. Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the 5 C.C.No. 6872/2019 accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
8. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.12. PW.1 was subjected for cross examination by the learned counsel for the accused.
9. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide dt: 1.8.2022 and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and documents has been read over and explained to the accused in the language known to him and the accused has denied the increminating evdience of complainant and documents. The accused did choose to enter the defence evidence.
10. In order to establish his defence, the accused got himself examined as DW.1 and got the document marked as Ex.D.1.
11. I have heard the arguments of learned counsels for both sides. The learned counsel for the complainant has also filed notes of arguments and memo with three decisions. I have perused the oral and 6 C.C.No. 6872/2019 documentary evidence placed on record and also gone through the principles laid down in the decisons cited on behalf of complainant.
12. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.858177 dated 19.12.2018 for Rs.1,00,000/- in his favour towards interest and legally recoverable debt and on presentation of cheque for encashment before the Vijaya Bank, Gandhi Bazar branch, Bangalore on 19.12.2018, it was came to be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 20.12.2020 and in spite of issuance of legal notice dated 21.12.2018 and in spite of service of legal notice dt: 22.12.2018, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
13. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
Point No.1: In the Affirmative.
Point No.2: As per final order for the following :-7
C.C.No. 6872/2019 REASONS
14. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
15. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, 8 C.C.No. 6872/2019 indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course.
16. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount 9 C.C.No. 6872/2019 arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
17. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
10C.C.No. 6872/2019 [ 18. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
19. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
20. Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the provisions of Section 138 of N.I.Act, so as to raise or to draw the presumption in his favour as per Section 118 and 139 of N.I.Act.
21. It is averred in the complaint and stated by PW-1 in his oral evidence that the accused has 11 C.C.No. 6872/2019 approached him in the last week of March 2017 for hand loan of Rs.4 lakhs for improvement of his business and family benefits and therefore, he has paid a loan of Rs.4 lakhs to the accused on 05.04.2017 and accused has executed an On Demand Promissory Notice and consideration receipt agreeing to repay the loan with interest @ 15% p.a and the accused has issued a cheque bearing No.858177 dated 19.12.2018 for Rs.1 lakh drawn on Saibarakatte Branch, in his favour towards interest amount and therefore, he has presented the cheque for encashment before Vijaya Bank, Gandhi Bazar Branch, bangalore on 19.12.2018 which was came to be dishonoured for want of sufficent funds in the account of the accused and therefore, he has issued a legal notice on 21.12.2018 calling upon the accused to pay the cheque amount of Rs.1 lakh within 15 days from the date of receipt of notice and it was served on the accused on 22.12.2018, but insptie of service of legal notice, the accused has failed to pay the cheque amount and therefore, he has presented the complaint before the court on 2.2.2019
22. The complainant has produced the cheque dated: 19.12.2018, Bank endorsement dt: 19.12.2018, legal notice dt: 21.12.2018, postal receipts dt:
21.12.2018, returned legal notice, postal cover, reply 12 C.C.No. 6872/2019 notice dt: 5.1.2019 and pronote and they are marked at Ex.P.1 to P.12.
23. The accused neither disputed the loan transaction with complainant nor issuance of cheque or siganture on the cheque or presentation of cheque or dishonour of cheque for want of sufficient funds in his account or issuance of legal notice or service of legal notice or reply of notice. There is no suggestions to PW.1 in this regard to deny the mandates of Sec.138 of NI ACt. On the other hand, it is suggested to PW.1 that the accsued has issued a cheque for security purpose of loan of Rs.1 Lakh and the interest amount at the rate of 15% for Rs.4 Lakhs comes to Rs.1,02,739.72 from 5.4.2017 for 19.12.2018.
24. Be that as it may, DW.1 who is the accused in this case has stated in his evidence that he has issued the cheque in question to the complainant at the time of sanction of loan. Even during the cross examination, DW.1 has admitted that he and complainant are from Udupi and known to each other since 7 years. It is also admitted by DW.1 that he has issued the cheque bearing No.858177 on 19.12.2018 and the cheque vide Ex.P.1 has been drawn by him from his account and it belongs to him and the signature on the cheque is also as that of 13 C.C.No. 6872/2019 his signature and he has issued the cheque vide Ex.P.1 towards interest amount. It is also forthcoming in the evidence of DW.1 that he has availed loan of Rs.1 Lakh from the complainant in the year 2017 and the complainant has issued notice for which he has replied.
25. From these materials placed on record, it is crystal clear that the accused by necessary implications has admitted the loan transaction, issuance of cheque towards interest amount, presentation of cheque for encashment, dishonour of cheque for want of sufficient funds in his account, issuance of legal notice, service of legal notice including reply notice.
26. However, on perusal of complaint averments, oral evidence of PW.1 and documentary evidence at Ex.P.1 to P.12, it clearly establishes that the accused has issued a cheque bearing No.858177 dt: 19.12.2018 for Rs.1 Lakh towards interest amount and the complainant has presented the cheque for encashment on 19.12.2018 and it was dishonoured for want of sufficient funds in the account of the accused and therefore, he has issued a legal notice on 21.12.2018 which was served on the accused on 22.12.2018, but inspite of service of legal notice, the accused has failed to pay the cheque amount, but he has sent reply notice 14 C.C.No. 6872/2019 and therefore, the complainant has presented the complaint before the court on 2.2.2019.
27. It is pertinent to note here that the cheque is dt: 19.12.2018, which was presented before the bank on the same day within its validity and the said cheque was dishonoured for want of sufficient funds vide 19.12.2018 vide Ex.P.2 which was intimated to the complainant on 20.12.2018. The complainant has issued legal notice as per Ex.P.3 dt: 21.12.2018 within the stipulated period from the date of receipt of bank endorsement giving 15 days time to accused to comply the demands made in the notice and the said notice has been duly served on the accused as per Ex.P.10. Since the accused has failed to pay the cheque amount within the stipulated period, the complainant has presented the complaint before the court on 2.2.2019 which was well within time.
28. So, it is crystal clear that the complainant has fulfilled all the mandates of Sec.118 and 139 of NI.Act by adducing oral evidence of PW.1 and by producing documentary evidence at Ex.P.1 to P.12 and therefore, the presumption is in favour of the complaiant under the provision of Sec.118 and 139 of NI. Act. Therefore, when the complainant has fullfilled all the mandates of sec.138 of NI. Act, then the presumption is in favour of 15 C.C.No. 6872/2019 the complainant under the provisions of Sec.118 and 139 of N.I.Act.
29. Admittedly, the presumptions available infavour of the complainant under the provisions of Sec.118 and 139 of NI.Act are not conclusive proof, but they are rebuttable in nature. Therefore, when once the complainant has fulfilled all the mandates of sec.138 of NI.Act and when once the court has drawn the presumption in favour of the complainant under the provisions of Sec.118 and 139 of NI.Act, then the onus shifts on the accused to rebut the statutory presumptions available infavour of the complainant under the provisions of Sec.118 and 139 of NI Act.
30. The learned counsel for the complainant has aruged with force that the complainant has fullfilled all the mandate of Sec.138 of NI Act by adducing oral evidence of PW1 and by documentary evidence at Ex.P.1 to P.12, which clearly establishes the complience of Section 138 of N.I.Act and therefore, the presumption U/s.118 and 139 of N.I.Act are infavour of the complainant.
31. It is further contended that the accused neither disputed the loan transaction nor issuance of cheque towards interest amount or presentation of 16 C.C.No. 6872/2019 cheque for encashment or dishonour of cheque for want of sufficient funds in his account or issuance of legal notice or service of legal notice or issuance of reply notice and thereby the complainant has fulfilled all the mandates of Sec.138 of N.I. Act.
32. It is further contended that the accused has taken a defence that, he has availed loan of Rs.1 Lakh only, for which he has issued a cheque in question for security purpose and he has already reapaid the loan amount with interest and on request, the complainant failed to return the cheque and misused the cheque by filing false complaint. But, though the accused has taken the said bald contention, same has not been amplicated before the court in any manner. The accused neither produced any cogent documentary evidence nor adduced any evidence of independent witness to substantiate his probable defence. But, on the other hand, the complainant has proved the guilt against the accused by adducing oral evidence and by producing the documentary evidence and hence, the accused is liable for conviction U/s.138 of N.I.Act.
33. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in (2010) 3 SCC 83 in between Mandvi 17 C.C.No. 6872/2019 Cooperative Bank Ltd., Vs. Nimesh. B Thakore., wherein while dealing with the provisions of Sec.145(1) (2) of NI Act, the Hon'ble Supreme Court has pleased to held that the evidence on affidavit given by complainant or his witness under S.145(1) of NI Act is in the nature of his examination in chief and he is not required to depose again in examination-in-chief before being cross examined as to the facts stated in the affidavit and when such application is made, the court would be obliged to summon the person giving evidence on affidavit and nature and extent of examination in each case to be construed in the light of S.145(1) of N.I.Act. The right to give evidence on affidavit is not avilable to accused. On the same principles, the learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Karnataka in Crl.Appeal No.1071/2008 C/w. 1072/2008 in between Sri. Mohandas Shetty Vs. Shafeeq Ahamed.
34. Learned counsel for the complainant has also relied upon a decision rendered by Hon'ble Supreme Court in Crl.Appeal No.849-850/2011 in between Triyambak S. Hegde Vs. Sripad, wherein while dealing with the provisions of Sec.118 and 139 of NI Act, the Hon'ble Supreme court has pleased to held that the principles of Sec.118 and 139 of NI Act are explecit to 18 C.C.No. 6872/2019 the fact that, such presumption would remain unless the contrary is proved. Once the accused has admitted the signature on the cheque, a presumption shall be raised U/s.139 of NI Act that the cheque was issued in discharge of debt or liability in question to be looked into as to whether there is rebuttable or not would depend on the facts and circumstances of each case.
35. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW.1 and documentary evidence at Ex.P.1 to P.12 and the materials placed on record do not establish the lending of loan of Rs.4 Lakhs by the complainant to the accused. But on the other hand, the oral evdience of DW.1 coupled with documentary evidence at Ex.D.1 would clearly establishes that the accused has availed a loan of Rs.1 Lakh only from Sai siri Finance Corporation belongs to complainant was doing money lending business and therefore, the accused has issued a cheque as per Ex.P.1 for loan of Rs.1 lakh and not for Rs.4 Lakhs and the accused has already paid amount of Rs.1 Lakh with interest and the accused has requested the complainant to return the cheque in question, but the complainant has failed to return the cheque and misused the cheque by filing complaint and therefore, the accused is not liable to pay the cheque amount.
19C.C.No. 6872/2019
36. It is further contended that the accused has raised a probable defence and also proved the same before the court by adducing oral evidence of DW.1 and by producing documentary evidence at Ex.D.1 and by eliciting the material facts in the evidence of PW.1 and thereby rebutted the presumption available infavour of the complainant U/s.118 and 139 of NI Act and hence, the accused is entitled to an order of acquittal and not liable to pay the cheque amount.
37. Now keeping the arguments canvassed by the learned counsel for both sides and the principles laid down in the above cited decisions in mind, let us consider as to whether the accused could able to substantiate his probable defence to rebut the presumption available infavour of the complainant under the provisions of Sec.118 and 139 of NI Act.
38. It is the evidence of DW.1 that he has availed a loan from Sai siri Finance Corporation to which the complainant is the owner and at the time of sanction of loan, the complainant has obtained a blank signed cheque towards security purpose and he has repaid the entire loan amount to the complainant on pigmy basis and the complainant being the employee of Sai Siri finance Corporation used to come and collect the pigmy 20 C.C.No. 6872/2019 amount daily and affixed his signature on the pass book wherein the mobile number of the complainant is also mentioned and therefore, he is not liable to pay any amount to the complainant and the cheque has been misused by the complainant for his personal gain and filed a complaint of created and concoted story and he has issued tenable reply to the legal notice issued by the complainant. The accused has produced the pass book and it is marked at Ex.D.1.
39. But, though the accused has taken this bald contention, same has not been amplified before the court in any manner. The accused neither produced any cogent documentary evidence nor adduced any evidence of independent witness to show or to prove that he has repaid the entire loan amount along with interest and he has issued the cheque only for security purpose and the complainant has misused the cheque.
40. No doubt, it is suggested to PW.1 that the accused has issued the cheque for security purpose of loan of Rs.1 Lakh loan; that he did not lend Rs.4 Lakhs to the accused; that he is running Sai Siri finance Corporation; that he has issued Pigmy passbook for payment of Rs.500 to 600 and the accussed has paid Rs.500 to 600 per day; that he has received full loan 21 C.C.No. 6872/2019 amount; that when accused requested to return the cheque; he has failed to return the cheque and filed false case; that Ex.P.12 pronote was in custody; that the witness who signed the pronote and consideration receipt are his friends; that he has filled the contents of Ex.P.12; that the accused did not put his signature on Ex.P.12; that he has concoted document at Ex.P.12; that interest metnioned in the pronote is against to law and that the accused has already paid Rs.1 Lakh loan with interest.
41. But all these material suggestions have been specifially denied by PW.1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of accused either to substantate his probable defence or to rebut the statutory presumptions available to the complainant under the provisions of Sec.118 and 139 of NI Act or to falsify the case made out by the complainant or to falsify the oral evdience of PW.1 or to falsify the documentary evidence at Ex.P.1 to P.12.
42. But, on the other hand, it is forthcoming in the evidence of PW.1 that he and accused are known to each other for 10 years and it is who the accused has filled the date of cheque and issued to him. It is also 22 C.C.No. 6872/2019 suggested to PW.1 that there is mention about interest at the rate of 15% p.a. on Ex.P.12 and interest in between 5.4.2017 to 19.12.2018 for Rs.4 lakhs approximately comes to Rs.1 Lakh and it is who the accused brought the pronote and consideration receipt and the witness who signed the pronote and consideratin receipt are known to both accused and complainant. It is also forthcoming in the evidence of PW.1 that he and accused were discussed and fixed the interest at the rate of 15% and accordingly mentioned the same in Ex.P.12. Even as per the suggestions made by learned counsel for the accused, the interest at the rate of 15% p.a. for Rs.4 lakhs from 5.4.2017 to 19.12.2018 comes to Rs.1,02,739.72. So, it is crylstal clear that the accused has issued the cheque in question towards interest amount which also come under the perview of other liability.
43. Though the accused has contended in his affidavit that he has issued the cheque for security purpose in respect of loan of Rs.1 Lakh and he has already paid loan amount with interest and the complainant failed to return the cheque and misused the cheque by filing the complaint, but the accused has not produced any cogent documentary proof to substantiate his probable defence. No doubt the accused has 23 C.C.No. 6872/2019 produced the pigmy pass book and it is marked at Ex.D.1 and there is an entry regarding deposit of money on monthly basis commencing from 23.9.2017 to 1.1.2018.
44. But the document at Ex.D.1 do not indicate that the complainant is the owner of Sai siri finance corporation and it belongs to complainant. It is pertinent to note here that the accsued at one point of time has stated that the complainant is the owner of Sai Siri finance corporation. But at another point of time, the accused has stated that the complainant being an employee of Sai siri finance corporation used come and collect the pigmy amount daily and affixed his signature on the pass book. So, it is crystal clear that the accused has kept on changing his version from stage to stage and thereby laid on the material facts before the court. More over, the accused has not placed any mateirals to show that the complainant is either the owner or the employee of Sai siri finance Corporation and there is also no materials to show that the accused has already paid Rs.1 Lakh with interest to the complainant at any point of time.
45. On the other hand, it is forthcoming in the evidence of DW.1 that he and complainant are from 24 C.C.No. 6872/2019 Udupi known to each other since 7 years and he has issued the cheque in question to the complainant on 19.12.2018 and he has drawn the said cheque on an account maintained by him and his signature also finds a place on the cheque. Even according to accused and as admitted in his cross examination that he has issued cheque in question infavour of the complainant towards interest amount. Therefore, when the accused has admitted the issuance of cheque and his signature on the cheque, then the presumption U/s.118 and 139 of NI Act is available in favour of the complainant. Even according to accused that the complainant filled the cheque in his presence only. So, it is crystal clear that the accused has given an authority to the complainant to fill the cheque and therefore, the provisions of Sec.20 of NI Act comes to the complainant and the accused cannot dispute the contents of cheque in question.
46. It is also forthcoming in the evidence of DW.1 that he has availed a loan from the complainant in the year 2017. It is also admitted by DW.1 that the document at Ex.D.1 is concerned to Sai siri Finance Corporation and not belongs to the complainant. It is also admitted by DW.1 that he has received the legal notice issued by the complainant and also replied the notice wherein he has not mentioned that he has availed 25 C.C.No. 6872/2019 a loan of Rs.1 Lakh from Sai siri Finance Corporation and also not mentioned with respect to repayment of loan of Rs.1 Lakh with interest to the complainant and he has not produced any documentary evidence before the court to show that the complainant is the owner of Sai siri Finance Corporation.
47. On appreciation of entire oral and documentary evdience placed on record, it is found that, the accused has issued the cheque vide Ex.P.1 to the complainant towards interest amount and on presentation of the cheque for encashment, it was came to be dishonoured for want of sufficient funds in the account of the accused vide bank endorsement at Ex.P.2 and the complainant has issued the legal notice vide Ex.P.3 to the accused giving 15 days to comply the demands made in the notice which has been duly served on the accused on 22.12.2018 vide Ex.P.10, but inspite of service of legal notice, the accused has failed to pay the cheque amount and therefore, the complainant has presented the complaint before the court on 2.2.2019 which was well within time and thereby the complainant has fulfilled all the mandates of Sec.138 of NI Act and when once the accused has admitted the issuance of cheque and signture on the cheque including the service 26 C.C.No. 6872/2019 of legal notice, then the presumption is always infavour of the complainant U/s.118 and 139 of NI Act.
48. The onus shifts on the accused to rebut the presumption. But the accused netiher produced any cogent documentary evidence nor elicited any material facts in the evidence of PW.1 so as to rebut the statutory presumption and to substantiate his probable defence. The accused has not placed any materials to show that he has already repaid loan to the complainant with interest and the complainant has failed to return the cheque and misused the cheque by filing false complaint. In the absence of such materials on record, the defence of accused is highly doubtful.
49. Under these circumstances, the arguments canvassed by the learned counsel for the accused that the accused has availed a loan of Rs.1 Lakh from Sai siri Finance corporation and he has issued cheque in question towards security purpose and the accused has alredy repaid entire loan of Rs.1 Lakh with interest and the complainant has failed to return the cheque which was issued for security purpose and misused the cheque by filing false complaint and there was no existence of legally enforceable debt and the accused has not issued cheque in question towards legally recoverable debt is 27 C.C.No. 6872/2019 not sustainable under law and therefore, cannot be accepted.
50. But, on the other hand, there is some legal force in the submission of learned counsel for the complainant that the accused has issued the cheque in question towards legally recoverable debt with respect to interest amount and the cheque was dishonorued for want of sufficient funds in the account of accused and inspite of service of legal notice, the accused has failed to pay the cheque amount and the complainant has fulfilled all the mandates of Sec.138 of NI Act by adducing oral evdience of PW.1 and by producing documentary evidence at Ex.P.1 to P.12 and the accused has admitted the issuance of cheque and signature on the cheque including service of legal notice and therefore, the presumption is in favour of complainant, but the accused has failed to rebut the statutory presumption available in favour of complainant and threfore, the accused is liable for payment of cheque amount U/s.138 of NI Act and the decisions cited in this regard are also applicable to the facts and circumstances of the case.
51. Therefore, for the reasons discusssed above, this court is of the considered view that the materials 28 C.C.No. 6872/2019 placed on record clearly establishes the guilt against the accused for the offence punishable U/s.138 of NI Act. Hence, I hold that the complainant has proved the guilt against the accused for the offence punishable U/s.138 of NI Act Hence I answer point No.1 is in 'Affirmative'.
52. POINT. No.2:- The provisions of Section 138 of N.I.Act provides punishment for imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of cheque or with both. In the present case, the complainant and accused are known to each other since long time and the accused has availed the loan for improvement of his business and also family benefits. Therefore, considering the facts and circumstance of the case including the nature of transaction between the complainant and accused and also regard being had to the time taken for disposal of the case, this Court is of the considered view that if the following sentence is awarded, then it would meet the ends of justice. Hence, in view of my findings on point No.1, I proceed to pass the following:-
ORD ER The accused is found guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(2) of Cr.P.C, the accused is convicted and 29 C.C.No. 6872/2019 sentenced to pay fine of Rs.1,25,000/-(Rupees One Lakh and Twenty Five Thousand Only), in default of fine amount, he shall undergo simple imprisonment for three months for the offence punishable under section 138 of N.I.Act.
Out of the fine amount collected from the accused, an amount of Rs.1,20,000/- shall be paid to the complainant as compensation U/s.357 of Cr.P.C. and the remaining fine of Rs.5,000/- shall be adjusted towards the cost of state expenses. The bail bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety of Rs.1,000/- deposited by the accused vide Q.No.18968/19 dated 28.1.2020 shall be refunded to the accused after appeal period is over with due identification.
Office to supply the copy of the Judgement to the accused forthwith at free of cost.
(Dictated to the stenographer, transcribed by him, print out taken by him, verified, corrected and then pronounced by me in the open Court on this the 29th November 2022).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.30
C.C.No. 6872/2019 ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Pratap S. Shetty
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque.
Ex.P.1(a) : Signature of the Accused.
Ex.P.2 : Bank Memo.
Ex.P.3 : Copy of Legal Notice.
Ex.P.4 : Postal Receipt.
Ex.P.5 : Returned legal notice
Ex.P.6 : Postal envelope
Ex.P.7 : Postal receipt
Ex.P.8 : Reply Notice
Ex.P.9 : Postal receipt
Ex.P.10 : postal acknowledgement
Ex.P.11 : Complaint
Ex.P.11(a) : Signature of complainant
Ex.P.12 : On demand pronote and consideration
receipt
Ex.P.12(a) : Signature of complainant on pronote
Ex.P.12(b) & (c) : Signatures of accused
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Ramachandra
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1; : pass book
(N.M.RAMESHA)
XVI ACMM, Bengaluru City.
31
C.C.No. 6872/2019